DRW17 v Minister for Immigration and Border Protection [2019] FCA 273 | Case summary

INTRODUCTION 1 The applicant is a citizen of Sri Lanka of Tamil ethnicity who arrived in Australia by boat in October 2012 as an unauthorised maritime arrival. In February 2017 he lodged an application for a Safe Haven Enterprise visa (subclass 790) (SHEV). His application was based on the provisions of s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth). He fears harm in the event that he is required to return to Sri Lanka on the basis of: his Tamil ethnicity; an imputed political opinion in relation to the Karuna group and/or the Liberation Tigers of Tamil Eelam (LTTE); being a young man whom the LTTE and the Karun group attempted to recruit; and being a failed asylum seeker. 2 On 17 May 2017 a delegate of the Minister for Immigration and Border Protection made a decision to refuse the grant of the visa. The decision is a "fast track reviewable decision" as defined in s 473BB of the Act. On 22 May 2017 the Minister referred the delegate's decision to the Independent Assessment Authority (IAA) for review. On 7 August 2017 the IAA affirmed the delegate's decision. 3 The applicant then applied to the Federal Circuit Court of Australia (FCCA) for a review of the decision of the IAA. The FCCA listed the proceedings for a show cause hearing pursuant to r 44.12 of that court's rules. On 15 August 2018 the hearing was conducted and a judge of the FCCA determined that none of the grounds of review revealed any arguable case of jurisdictional error and dismissed the application; DRW17 v Minister for Immigration & Anor [2018] FCCA 2237. 4 In August 2018 the applicant filed an application for leave to appeal in this court pursuant to r 35.12 of the Federal Court of Australia Rules (FCR). Leave to appeal is necessary because the decision of the FCCA was interlocutory in nature. 5 The application for leave to appeal raises the grounds summarised below, on the basis that the FCCA failed: (1) to find that the IAA committed jurisdictional error by failing to consider the integers of the applicant's claims to complementary protection; (2) to find that the IAA failed to consider certain new information; (3) to find that the IAA erred in relation to its findings as to credibility; (4) to find that the IAA denied the applicant procedural fairness; (5) to find that the delegate failed to take into account the possibility that the applicant was imputed to be an LTTE supporter or person with LTTE links before he left Sri Lanka and the consequences of that possibility; (6) to ensure that the show cause conducted was fair in circumstances where the applicant was self-represented. 6 The applicant represented himself at the hearing with the assistance of a Tamil interpreter. He did not file any written submissions in support of his application. The Minister was represented by Clayton Utz solicitors and filed written submissions in advance of the hearing. 7 After making oral submissions in support of his application the applicant applied for an adjournment of the hearing. He contended that he would like further time within which to seek legal advice. He also referred to an email that he had sent to my chambers (copied to the Minister's representative) in which reference was made to a request for an adjournment on medical grounds, primarily on the basis of mental ill health. Regrettably for the applicant, the document provided in support of that application provided no objective corroboration for the condition that he claimed to suffer. Upon questioning as to the steps he had taken to seek legal assistance, the applicant indicated that he had approached a barrister for assistance in the past 4 - 5 days. I have noted that the application for leave to appeal in these proceedings was filed in August 2018. The applicant has apparently taken no steps to secure assistance until the last possible moment. In those circumstances I was not satisfied that the applicant had established a sufficient basis to adjourn the hearing.

THE APPLICATION FOR LEAVE TO APPEAL 14 In considering the question of the grant of leave to appeal, I must take into account the statements of principle in Décor Corporation Pty Ltd v Dart Industries Inc. [1991] FCA 844; (1991) 33 FCR 397 (Sheppard, Burchett and Heerey JJ), to the effect that this Court will generally grant leave to appeal where the applicant shows that there is sufficient doubt as to the correctness of the judgment subject to the proposed appeal to warrant review and, further, if that judgment is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused. The correct approach to the evaluation of the prospects of success is to consider the proposed grounds of appeal at a reasonably impressionistic level, and enquire whether a ground is "sufficiently arguable" or has "reasonable prospects of success"; see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (per Mortimer J). 15 The Minister submits that the above principles have the consequence for the present case that the primary consideration in considering leave to appeal is the merits of the proposed appeal. I agree. 16 The first proposed ground of appeal is that the primary judge failed to hold that the IAA committed jurisdictional error as it failed to consider the integers of the claims to complementary protection. I have noted that none of the proposed grounds of appeal was raised before the primary judge and so the premise of error on the part of the learned primary judge is incorrect. However, I proceed to consider this ground, as I do all of the grounds below, on the basis of considering error on the part of the IAA alone. 17 In particulars appended to this ground, the applicant contends that the IAA did not cite two reports that he alleges formed part of the relevant country information. The first is a DFAT report dated 23 May 2018, the second is a DFAT report dated 24 January 2017. The first was prepared after the decision of the IAA and after the date of the decision of the primary judge. It is accordingly irrelevant. In relation to the second, it is to be noted that the IAA states in [3] of its decision that it had regard to the material referred to it by the Secretary pursuant to s 473CB of the Act. That material includes the evidence on which the delegate's findings were based. The delegate referred in terms to the 24 January 2017 DFAT report, which accordingly formed part of the review material. The IAA at [42] (and elsewhere) refers directly to the DFAT reports that were in the review material, being the materials before the delegate. Accordingly, there is no arguable basis upon which proposed ground 1 can be made out. 18 In proposed ground 2 the applicant contends that the IAA failed to consider new information in the form of the 23 May 2018 DFAT report. However, plainly enough a report that was created after the decision of the IAA could not be advanced before it. The ground is misconceived. 19 In proposed ground 3 the applicant contends that the IAA erred in making its credit findings. The particulars appended to the ground do not specify any aspect of the adverse credit findings where the IAA is said to have erred. At particular (c) the allegation made is that the primary judge failed to review the component parts of the process by the IAA that led to the finding "from the perspective of legal reasonableness". I assume that this is intended to be a reference to the concept of legal unreasonableness. 20 The relevant credit findings of the IAA are summarised in [9] above. They include findings that the applicant was not a credible witness and that he fabricated a number of claims. The findings are based on the conclusion reached by the IAA that the applicant's evidence includes vague and inconsistent accounts of events, that certain claimed events were implausible and that there were contradictions between versions of events given by the applicant and his own documentary evidence. The explanation of these findings given by the IAA is rational and intelligible. They do not reflect jurisdictional error. 21 In proposed ground 4 the applicant contends that the IAA denied him procedural fairness. The particulars provided state that the IAA decision was based on an assessment as to whether the applicant was to be believed and that there was a failure to give reasons or to disclose to the applicant the material upon which the finding was based. The applicant's submissions must be considered in the context of Part 7AA of the Act. The obligation on the IAA is to review a fast track reviewable decision by considering the review material without accepting or requesting new information and without interviewing the referred applicant; s 473DB(1). By s 473DA, Division 3 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA. It is in this context that the Full Court in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 (Reeves, Robertson and Rangiah JJ) found that consideration of the natural justice requirements of Part 7 of the Act is inapposite for cases considered under Part 7AA (at [69]). As the Full Court noted at [75], there is no requirement in Part 7AA, equivalent to s 425, that provides that the IAA must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising. Indeed, by s 473DB the IAA must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant. 22 Furthermore, there is in any event no obligation on the part of the IAA to invite an applicant to comment on the existence or doubts or inconsistencies because his or her credibility is called into question; see, by analogy with Part 7, SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190 at [18]. The obligation of the IAA under s 473DB is to review a fast track reviewable decision referred to it and consider the material provided, without accepting or requesting new information and without interviewing the referred applicant. The IAA quite evidently discharged that obligation. 23 In proposed ground 5 the applicant contends that the delegate was obliged to take into account the possibility that the applicant was imputed as an LTTE supporter or a person with LTTE links. If the delegate had done so, it may have affected his assessment of whether the applicant faces a real chance of persecution. The decision of the delegate is not the subject of the present appeal. I shall assume that the applicant contends that it is the IAA which erred. 24 This ground relies on the decision of Sackville J, with whom North J agreed, in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 (Sackville, North and Kenny JJ) at [60], [62] and [67]. However, the relevant passage in that case adverts to the presence of doubt on the part of the tribunal as to its conclusions: 62 In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur. 25 In the present case the IAA did not express doubt as to its conclusions and accordingly was not required to take into account the possibility that a particular event took place in considering the ultimate question. 26 In proposed ground 6 the applicant contends that the primary judge failed to ensure that the show cause hearing before him was fair, and that the applicant did not suffer a disadvantage from being self-represented. The particulars appended to this ground contend that the primary judge failed to take appropriate steps to ensure that the applicant had sufficient information about the practice and procedure of the court and that the court failed to explain in plain terms that the applicant must identify why the decision of the IAA was not made lawfully. No evidence in support of these grounds has been supplied. The primary judge at [16] indicates that the applicant was invited to make oral submissions, which he then summarises. The applicant does not criticise the summary as inadequate. It is apparent that the applicant was afforded an opportunity to make submissions with respect to the grounds raised in the application and that he took that opportunity. In the absence of any evidence of any failure by the primary judge to explain procedure to the applicant, or that any failure could have affected the outcome, it is not apparent to me that this ground of appeal would have a real prospect of success. 27 Finally, during the course of the hearing in this court, the applicant made oral submissions in support of his application. He submitted that he could not go back to Sri Lanka, because anonymous people were looking for him. He submitted that 65,000 people had gone missing in Sri Lanka and that there were people still going missing. He submitted that he had tried to find evidence to support these points but he could not do so. To these submissions it is apposite to make the observation, which is apt for many such appeals, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the applicant satisfies the criteria for the grant of the SHEV or to grant the applicant a visa. As such, neither Court has the capacity to consider the factual merits of the IAA's decision to refuse to grant the SHEV to the applicant. The jurisdiction of the FCCA is limited to considering only whether the IAA's decision to refuse to grant the applicant the SHEV is lawful under the Act, that is, whether the decision of the IAA is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the IAA under s 24 of the Federal Court of Australia Act 1976 (Cth). The oral submissions of the applicant do no more than put forward a further basis, unsupported by evidence, upon which the merits of the decision of the IAA are challenged. That is not a permissible approach in a case such as the present.

DRW17 v Minister for Immigration and Border Protection

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